Frequently Asked Questions About Financial Incentives

Answers

Pre-application Meetings

Can a meeting be scheduled with the Voluntary Cleanup Program personnel prior to submitting an application and the initial $6000 application fee?

Pre-application meetings are encouraged to ensure that parties are aware of the application and participation requirements. These meetings result in more complete application packages can help reduce the time between receipt and approval of the application and may help reduce costs of environmental investigations. To schedule a pre-application meeting, please contact the VCP/Brownfield at 410-537-3493.

VCP Applications

Is an environmental assessment performed on a property several years ago sufficient for the application purposes?

That information may be used, however, it will be necessary to update the assessment. This will include the performance of a new site reconnaissance and review of all new records, maps, photos, data, or other relevant site information. Soil and groundwater sampling must also be updated. The essential components of Phase I and II site assessments for VCP properties are listed in Attachment 2 of the VCP Guidance document. In addition, the VCP checklist is included as an attachment to the application to assist users with completing the application.

Can more than one application be submitted for a single property? If so, is a second application fee required?

Multiple applications for the same property may be submitted for approval to participate in the Voluntary Cleanup Program. Each application (excluding initial application: $6,000) must be accompanied by the required environmental information and a $2,000 application fee. While a second applicant may incorporate the environmental information from a prior application, a separate application fee is required by law.

As a practical matter, our experience has been that subsequent applications require less review. As an example of how this is typically done, an application may be submitted by the responsible person for a particular property, and, if the property is being marketed for sale, a prospective purchaser may also submit an application seeking inculpable person status. This enables both parties to benefit from the program. The responsible person and inculpable person obtain final sign-offs from the State for controlled hazardous substances requirements. The inculpable person also receives a liability release for past contamination.

If a single entity proposes multiple parcels for participation in the VCP, are multiple applications and application fees required?

Maybe. If these multiple parcels are contiguous, a single application and application fee can be submitted. However, if parcels are not contiguous, an application accompanied by the $6,000 fee must be submitted for each non-contiguous parcel. If these multiple parcels are only separated by public thoroughfares (e.g. roadways) and right-of ways, they are considered contiguous and/or are part of the same planned unit development or similar development plan a single application and the $2,000 fee may be submitted.

Can an applicant to the Voluntary Cleanup Program get approval for cleaning up a portion of a property?

No. The application and resulting liability releases must cover the entire property.

How is the Voluntary Cleanup Program applicant/participant aware of the application and oversight costs during the course of the project?

Itemized statements are sent to all program applicants/participants listing the MDE costs for document review, site visits and other direct oversight activities for a specified time period. The total costs for each period are deducted from the balance of the application fee. Fees related to applications received into the VCP after October 1, 2004, are non-refundable*.

Real Estate Transactions

If the applicant has a real estate transaction deadline, will MDE expedite the application review process or can the applicant do anything to lessen the review time?

MDE is required to notify the applicant within 45 days after receipt of a complete application whether the application is incomplete, accepted or denied. MDE frequently receives requests to expedite the review process to meet real estate transaction deadlines that fall before the mandated 45-day review period expires. MDE makes every effort to review applications in a timely manner and frequently completes the review well within the 45-day period. However, MDE cannot guarantee it will meet an applicant's specific deadlines, which fall before the review period expires. however, an expedited determination status may be requested if the person meets the requirements of Section 7-506(a)(1)(i), (ii) and (iii) of the Environmental Article and submits a fee of $2000 with a written request. The mandated review period serves two functions:

To allow sufficient time for MDE to review and process application packages, and

To provide certainty to applicants regarding the duration of MDE's review period.

If you are a current owner of a property and excluded from the definition of a responsible person under section 7- 201(2) are you an inculpable person even if you own the property?

Normally the inculpable person status applies to a prospective purchaser and a current property owner such as lenders, state, county or municipality government and others (e.g. heirs) excluded from the definition of a responsible person under section 7-201(2). If you believe that you may be eligible for inculpable person status even though you currently own the property, it is recommended that you contact the MDE Office of the Attorney General (OAG) to discus your specific legal status. The OAG can be reached at 410-537-3053.

If a property owner suspects that contamination on his/her property is coming from an adjacent property, is the owner of the contaminated property liable for and required to investigate the contamination?

Yes. Unless, the owner of the property being impacted by an off-site source can establish that he/she is entitled to the contiguous property owner exclusion in the VCP law, then he/she is liable for the contamination. If this property owner applies to the VCP, the property would have to be thoroughly investigated, even though the contamination is suspected to be from an off-site source. Since applicants are required to provide all known environmental information about a property, the VCP would request that copies of the environmental investigations at the adjacent property be submitted if these materials contain information relating to environmental conditions at the subject property and if they are available to the participant.

Contribution Protection

Does MDE provide third party liability protection or contribution protection for participants in the Voluntary Cleanup Program?

Participants in the Voluntary cleanup Program are not provided protection from third party suits. Contribution protection against a third party claim is explicitly provided in the Certificate of Completion under State law.

Reopeners

What are reopeners?

After an NFRD or COC is issued a participant may be required to take further action under certain circumstances. The reopeners are broader for responsible persons than for inculpable persons. The reopeners, or caveats, for both the NFRD and the COC are as follows:

Reopeners

Applicability

New or Exacerbated Contamination

Inculpable and Responsible persons

Undiscovered Contamination

Responsible persons only

Imminent and Substantial Endangerment

Responsible persons only

Fraud/Material Misrepresentation

Inculpable and Responsible persons

If an NFRD or COC is contingent on a specific future use of the property, failure to comply with the future use restriction voids the NFRD or the COC. For those sites that receive a COC but have long-term monitoring and physical maintenance requirements, failure to comply with those requirements may void the COC. In addition, if the NFRD or COC are conditioned upon permissible use of the property, the participant shall pay MDE a fee of $2000.

Have any reopeners been implemented on sites that have completed the VCP? If so, what were the circumstances? What were the consequences in terms of costs or additional investigation?

To date, two reopeners have been applied to sites that have completed participation in the VCP and received a Certificate of Completion (COC) and a No Further Requirements Determination (NFRD). The exceedence of an action level during long term groundwater monitoring after a COC was issued required the participant to collect frequent groundwater samples. In the other case, the participant failed to notify MDE of excavation activities, which uncovered contamination after the issuance of a NFRD. MDE levied a civil penalty.

Protection from Federal Actions

Is a participant, who receives a sign-off from the State through the VCP, still subjected to federal (EPA) requirements?

No, unless the EPA determines that conditions at a site pose a risk of significant harm to public health and the environment. MDE and EPA Region III signed a Memorandum of Agreement that provides participants with certain protections from federal action after MDE issues a No further Requirements Determination (NFRD) or Certificate of Completion (COC).

EPA Region III recognizes that Maryland has developed and implemented, through the Voluntary Cleanup Program, strategies to promote the cleanup and redevelopment of underutilized properties and has agreed to consider sites that have been investigated or remediated under the Voluntary Cleanup Program to be of "no federal interest" unless: EPA determines that conditions at the site present an imminent and substantial endangerment to public health, welfare or the environment or an emergency situation exists; previously discovered contamination or new contamination is found at the site after the issuance of the NFRD or approval of a response action plan (RAP); new information concerning site conditions is made available after approval of the RAP; or the NFRD or COC was obtained through fraud or material representation. These reopeners are similar to those in effect for responsible persons under the State Voluntary Cleanup law.

Environmental Assessments

Is a Phase II environmental assessment necessary if a Phase I does not identify a concern?

The statute requires both a Phase I site assessment that "adequately investigates all areas of contamination and potential contamination." Pursuant to Section 7-506(a)(1) of the Environmental Article, a phase II assessment may not be necessary if the Department concludes, based on a review of the Phase I, any public comments, and other available information, that there are no recognized environmental conditions as defined by the American Society for Testing Materials (ASTM). The extent of the Phase II assessment may be based on the results of the Phase I assessment. Specifically, if a Phase I thoroughly documents the site history and indicates that past activities had been confined to a discrete portion of the property, the Phase II sampling may be concentrated in this area. Similarly, if the Phase I thoroughly documents the site history and indicates that past activities were confined to use of certain chemicals, the Phase II sampling parameters may be limited to those chemicals for certain samples.

The VCP sampling requirements increases participant's assurances that areas of contamination are not overlooked and, therefore, provisions for reopeners to the No Further Requirements Determinations and Certificates of Completion will be less likely.

What environmental media must be sampled as part of the Phase II assessment? What analysis should be performed on the samples?

MDE requires that surface soils (0-1 foot deep), deeper soils (4 to 5 feet deep) and groundwater be sampled. Surface water and sediment samples must also be collected if a surface water body is located on the property or if there is a direct discharge from the property to surface water. Providing the Phase I documents a thorough site history, the sample analysis may be tailored to include just compounds known or suspected to be used, stored or manufactured at the property, either currently or in the past. If a thorough site history has not been documented analysis should include priority pollutant metals, volatile organic compounds, and semi-volatile organic compounds at a minimum.

Response Action Plans (Cleanup Plans)

Can a participant submit one cleanup plan to the Voluntary Cleanup Program for both oil and hazardous substances?

Yes an applicant/participant may submit one plan to the Voluntary Cleanup Program (VCP). The VCP will coordinate with the Oil Control Program on remediating the oil contamination. Alternatively, if the Voluntary Cleanup Program applicant prefers to submit a separate plan to the Oil Control Program, he/she may do so. Note however, if the remediation of the controlled hazardous substances is completed to the satisfaction of MDE, the Voluntary Cleanup Program will issue a final site approval letter with a petroleum exclusion.

Can a response action plan (RAP) be based on multiple cleanup criteria?

Yes, a participant may apply multiple cleanup criteria to different media at the property as long as MDE is satisfied that the proposed plan is protective of public health and the environment.

Is MDE involved during implementation of an approved response action plan? What problems typically arise that interests MDE?

MDE oversees implementation of the approved response action plan in its entirety to ensure compliance with the plan. MDE must be notified immediately of any previously undiscovered contamination, changes to the remediation schedule, previously undiscovered storage tanks and other oil related issues, and citations from regulatory entities related to health and safety practices.

Can a participant in the Voluntary Cleanup Program get a Certificate of Completion before completing long-term monitoring requirements?

Yes.

Cleanup Criteria

Can an applicant select measurable standards based on a site-specific risk assessment as the cleanup option for contaminants at the property if MCLs or ambient water quality criteria exist?

MDE is required to approve the selected cleanup option if the selected option is "appropriate" and is determined to protect public health and the environment. The statute allows a participant to select from various cleanup criteria, including measurable standards based on site-specific assessments if there is no risk based on future use of the property. However, the program does not have the authority to waive any applicable MCL or ambient water quality regulations.

When do drinking water standards (MCLs) apply?

Groundwater cleanup standards are applied to groundwater from Type I and Type II aquifers (see table) and groundwater use areas.

Type 1 Aquifer: An aquifer having transmissivity greater than 1,000 gallons/day/foot, permeability greater than 100 gallons/day/square foot, and natural water with a total dissolved solids concentration less than 500 milligrams/liter.

Type II Aquifer: An aquifer having either:(a) A transmissivity greater than 10,000 gallons/day/foot, permeability greater than 100 gallons/day/square foot, or natural water with a total dissolved solids concentrations between 500 and 6,000 milligrams/liter; or

(b)a transmissivity between 1,000 and 10,000 gallons/day/foot, permeability greater than 100 gallons/day/square foot, and natural water with a total dissolved solids concentrations between 500 and 1,500 milligrams/liter

Groundwater use area means " a property located within a ½ mile radius of a potable use well, or an area not served by a public water distribution system and reliant on groundwater for potable consumption, or an area where there is potential for future groundwater use as a potable water supply source, or a wellhead protection area for public supply wells that have been approved by MDE" (MDE Soil and Groundwater Cleanup Standards, Update No. 2.1 - June 2008.Groundwater cleanup standards are generally applicable to Type I and Type II aquifers, with the following exceptions:

It is technically impractical to complete a remedial action to a groundwater standard;

The applicant can demonstrate that there is no current or projected future use of groundwater within one half mile of the property, contaminant concentrations are at asymptotic levels and do not exceed a standard by an order of magnitude, risk assessment shows no risk considering current and future use, and a groundwater management zone has been implemented to restrict or prohibit groundwater use at the property;

An applicant can demonstrate that the hazardous substance(s) will not migrate off the property;

Groundwater must be remediated if any of the following conditions occur:

Free product is discovered;

The concentration of the hazardous substance(s) exceed either the target cancer risk threshold of 1 x 10-5 or the Hazard Quotient threshold =1 via the inhalation pathway exposure scenario (this determination would be based on a site-specific risk calculation);

A drinking water well is contaminated above MDE groundwater cleanup standard or a traditional risk assessment indicates an exceedance of a target cancer risk threshold of either 1 x 10-5 or the non-carcinogenic Hazard Quotient threshold =1 at a well head, or MDE determines that a drinking water well is at risk of becoming contaminated above a groundwater cleanup standard; or

Public Participation Requirements

Upon submission of an application to MDE, the applicant must post a notice at the property with the following information:

The name and address of the applicant and the property

The name, address and telephone number of the office within MDE from which the information about the application can be obtained; and

The deadline for the 30-day time period during which MDE will receive and consider written comments from the public.

In addition to the above information, sign dimension, location and verification exist. A template is available under attachment 6 of the guidance document.

If a property owner meets with the local community and fully explains the project prior to filing an application for participation in the Voluntary Cleanup Program, will the property owner be required to hold a public informational meeting regarding the proposed response action plan?

A participant may meet with the local community group at any point in the process. In fact, many have found that the earlier a community is involved, the more smoothly the process can be completed. However, MDE is required to hold a public informational meeting on the proposed response action plan within 30 days after MDE receives a written request for a meeting (during the public participation period) from the applicant or the public regardless of whether other meetings have already taken place.

Interim Removal Measures (IRM)

What is the review time for an IRM?

The MDE review period for an IRM is less than 30 days from the date of submission of a written request, a health and safety plan and a work plan.

Under what conditions does the MDE allow IRM activities for properties participating in the VCP?

The typical IRM approved by MDE is limited in scope, is necessary to adequately protect public health and the environment, and involves the removal of soil contamination hot spots. Please see the VCP guidance Document for the full list of potential IRM activities.

If cleanup is limited to the removal of soil contamination, will the property be eligible for a No Further Requirements Determination?

If an approved IRM is successfully implemented to remove soil contaminated hot spots and the cleanup criteria are achieved, MDE can issue a NFRD.

I am considering an IRM for a VCP site with groundwater contamination. Can I implement a groundwater remedial strategy (e.g. chemical oxidation, pump and treat) under an IRM?

No. MDE will not approve an IRM for groundwater remediation unless contaminants pose and imminent and substantial endangerment to public health or in an emergency situation.

Issuance of VCP Final Site Approval Letters

How does MDE decide when to issue a No Further Requirements Determination (NFRD) or require a response action plan before issuance of a Certificate of Completion (COC)?

As part of the review of a complete application package, MDE performs a data screening risk evaluation to determine whether conditions at a property pose a risk to human health or the environment. Based on the results of the data screening, MDE determines whether there will be further requirements at the property.

Deed Restrictions

If MDE determines there are no further requirements at a property, why are deed restrictions sometimes included?

MDE issues COCs and NFRDs based on future property use if requested by the applicant. If the applicant/participant requests that the cleanup be based on future use and if MDE determines that under certain circumstances the property will not pose an unacceptable risk to any potential receptors, MDE will issue a determination contingent on the future use of the property. Along with the requested property use restriction, MDE may also to impose physical maintenance requirements to ensure protection of public health and the environment. Any property use restrictions or physical maintenance requirements must be recorded in the local land records to ensure notification of future property owners.

How will MDE monitor compliance at properties that received a NFRD or COC with certain physical maintenance requirements or other deed restrictions?

MDE will monitor compliance at properties that have received NFRDs or COCs that include property use restrictions or physical maintenance requirements by conducting periodic site inspections. Additionally, for certain physical maintenance requirements, a participant may be required to submit periodic inspection reports to MDE. Deed restrictions for properties that have received final sign-off letters can be viewed at the VCP website too.

Withdrawal from the VCP

Since I withdrew my application from the Voluntary Cleanup Program do I receive a refund of my fee?

The applicant/participant may withdraw from the program at any time if the site has been stabilized and secured. MDE must be provided with at least 10 days notice prior to the withdrawal. The balance remaining from the application fee after MDE's costs are charged will be refunded to the applicant. If an applicant/participant withdraws from the program after October 1, 2004, there will be no refund.*

VCP versus State Superfund

Are there any advantages to participating in the VCP versus the State Superfund Program?

The liability releases provided through the State's Voluntary Cleanup Program are the best available from the State. Purchasers of property who have never had title, nor caused or contributed to contamination at a property, may receive a release of liability from the State for all past contamination through the Voluntary Cleanup Program. Responsible parties receive a release of liability from the State for contamination identified subject to certain reopeners. These types of releases provided by law are not available under the State Superfund Program.

A property owner previously participated in the Brownfields Site Assessment Program and received a "no further action" letter. Is that letter different from the "no further requirements determination" offered by the VCP?

Yes. The Brownfields Site Assessment Program letter states that, based on the sampling preformed, MDE and EPA have no further requirements at that time. The No Further Requirements Determination is a limitation on liability provided by statute and can only be "reopened" under specific circumstances provided by law.

Are Brownfields sites generally cleaned up to a less stringent standard?

No. Cleanup standards for all sites are based on EPA recommended levels of risk for the designated land use (e.g. residential or non-residential).

Financial Incentives

What are the financial incentives?

The Maryland Department of Business and Economic Development administers the Brownfields Revitalization Incentive Program, which provides financial incentives for the redevelopment of brownfields. Eligible Brownfield sites are either those that qualify for the VCP or those contaminated by oil. Properties must generally be industrial or commercial sites that are located in densely populated urban centers and generally underutilized to qualify for the program. Financial incentives include: 1) low interest loans or grants for Phase I and Phase II environmental assessments, 2) property tax credits in jurisdictions that have enacted enabling legislation for the difference on the assessed property value after pre- and post cleanup and /or redevelopment; and, 3) low interest loans or grants for site remediation. These incentives are designed to stimulate redevelopment in areas where cleanup will have significant environmental, economic development and urban revitalization benefits. For more information regarding these financial incentives, please contact the Department of Business and Economic Development, at 410-767-6390.

The Brownfields Site Assessment Initiative, funded by EPA grants, is intended to help eligible property owners or prospective property owners determine the type and extent of possible contamination on a property. These assessments are conducted by MDE free of charge and both property owners and prospective property owners are eligible to participate. Applicants to the VCP may also apply for a Brownfields assessment, which will reduce the investigation costs associated with a VCP application. The property should meet the following conditions: 1) have perceived or known contamination; 2) be vacant or underutilized; 3) be located in a commercial or industrial area; 4) create jobs; and 5) improve the local tax base following redevelopment. Eligible properties also include sites on the EPA Comprehensive Environmental Response, compensation and Liability Information System (CERCLIS) and State Master List. Properties under active enforcement by MDE are not eligible to participate. This initiative is administered on a first-come, first-serve basis beginning July 1 of each calendar year and is open to both the public and private sector. Please contact the Land Restoration Program at 410-537-3493 for further information on the Brownfields Site Assessment Initiative.

The Clean Water State Revolving Loan Fund provides low interest loans for cleanup costs to complete approved cleanup plans for sites on the State Master List (commonly referred to as State Superfund sites of CERCLIS NFRAP sites) or in the VCP where water quality is an issue. This funding is provided to parties legally responsible for cleanup of sites or parties who have been accepted into the VCP. Please contact the Land Restoration Program, at 410-537-3493.